United States District Court, D. Montana, Great Falls Division
JEFFREY P. CONWAY, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE
negligence action comes before the Court on Defendant United
States of America's motion for summary judgment and
motion to dismiss a petition by United States employee Jason
Hardy to certify that he was acting within the scope of his
office or employment at the time of the underlying incident
giving rise to Plaintiff Jeffrey Conway's claims. Because
the United States has not waived its sovereign immunity as to
Conway's tort claims, the United States is entitled to
summary judgment and Captain Hardy's petition to certify
is properly dismissed.
was injured in a motor vehicle collision in the early morning
hours of Sunday, September 7, 2014, when the vehicle he was
driving was struck head on by a vehicle driven by Hardy. At
the time of the incident, Hardy was an active duty captain
with the United States Air Force, stationed at Malmstrom Air
Force Base in Montana. Hardy's work assignments were
consistent with a Monday through Friday day shift schedule,
and he was off-duty for the weekend when the incident
Saturday, September 6, 2014, Hardy attended a friend's
wedding in the afternoon or early evening, went out for a
meal, and then returned to his off-base apartment. Later that
evening, Hardy walked to a bar and grill where he helped as
an assistant to the bartender. After that, Hardy met friends
at a different bar and then walked back to his apartment.
Hardy does not remember anything that happened between
arriving home from the bar late that night and waking up in
the emergency room after the incident.
the incident, the Air Force initiated a “line of
duty” investigation pursuant to Air Force Instruction
36-2910 Line of Duty (Misconduct) Determination for
purposes of determining Hardy's eligibility for certain
government benefits. Retired Lieutenant Colonel Keith Hepler
carried out the investigation, and ultimately determined that
Hardy had engaged in a bona fide suicide attempt secondary to
preexisting combat-related post-traumatic stress disorder,
traumatic brain injury, alcohol abuse, alcohol dependence,
and major depressive disorder. (Doc. 37-2, at 46). As a
result, Hepler concluded that Hardy was in the line of duty
at the time of the incident.
August 2017, Conway commenced this action against the United
States pursuant to the Federal Tort Claims Act (FTCA), 28
U.S.C. § 1346(b), alleging claims for negligence and
negligent supervision. The United States moves for summary
judgment on both claims on the ground that it has not waived
sovereign immunity and subject matter jurisdiction is thus
lacking. The United States also moves to dismiss Hardy's
petition to certify that he was acting in the scope of his
office or employment because he is not a party to this
Summary Judgment Standards
Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The party
seeking summary judgment bears the initial burden of
informing the Court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of any genuine issue of material fact.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
A movant may satisfy this burden where the documentary
evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251
the moving party has satisfied its initial burden with a
properly supported motion, summary judgment is appropriate
unless the non-moving party designates by affidavits,
depositions, answers to interrogatories or admissions on file
“specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. 317, 324 (1986).
The party opposing a motion for summary judgment “may
not rest upon the mere allegations or denials” of the
pleadings. Anderson, 477 U.S. at 248.
considering a motion for summary judgment, the court
“may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477
U.S. at 249-50. The Court must view the evidence in the light
most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party's favor.
Anderson, 477 U.S. at 255; Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21
(9th Cir. 2007).
United States can only be sued to the extent that it has
waived its sovereign immunity.” Baker v.
United States, 817 F.2d 560, 562 (9th Cir.
1987). The FTCA provides a waiver of sovereign immunity,
making the United States liable to the same extent as a
private party for certain torts committed by federal
employees acting within the scope of their employment.
United States v. Orleans, 425 U.S. 807, 813 (1976).
The FTCA's waiver of sovereign immunity must be strictly
construed in favor of the United States. Brady v. United
States, 211 F.3d 499, 502 (9th Cir. 2000).
FTCA's waiver of sovereign immunity is not without
limitation. Relevant here, the waiver is limited to claims
based on conduct by a federal employee “acting within
the scope of his office or employment…” 28
U.S.C. § 1346(b)(1). The waiver is also subject to
several specific exceptions, including the discretionary
function exception. 28 U.S.C. § 2680. The discretionary
function exception bars “[a]ny claim…based upon
the exercise or performance or the failure to exercise or
perform a discretionary function ...